Yes, Patents Are A Restriction On Freedom

from the does-that-apply-to-all-such-monopolies? dept

Tim Lee points us to an interesting blog post from a patent lawyer who tries to parse out why software patents feel so offensive to some. The lawyer, Steve Lundberg, who tends to be a software patent supporter (and whose blog posts I've strongly disagreed with in the past) does make some interesting points. Lee highlights the following:

There is one more factor that makes software very unique — because a single person can successfully develop and distribute software applications, the experience with the system is highly personalized for a large number of developers. Software patents, in a sense, and almost unlike all other technology areas, restrict what feels like our treasured personal freedom, and understandably thus generate a visceral reaction to those so affected. In almost all other mainstream industries, inventors do not act as manufacturers, but are employed by them. This decouples and depersonalizes infringement concerns from the inventor/developer. In actual practice, it is extremely rare that a small developer would ever be sued for infringement by any entity other than a direct competitor. In this instance, the developer would be able to quite easily see it coming, but there is a possibility that they could be sued and not see it coming. So, I can understand why smaller developers would feel personally threatened by software patents. And even software developers in large companies often still fancy themselves as independent souls who, in their dreams, find fame and fortune founding a start-up and striking it rich. So, they too, often can take umbrage as much as an independent developer.

Lee responds to this paragraph by almost totally agreeing with a couple of important caveats. First, he notes that Lundberg greatly underestimates how many small and indie developers are hit by patent lawsuits these days. Actually, I'd say even that massively underestimates the problem, because it doesn't take into account all of those who are never sued, but who are hit with threats that can be tremendously damaging to small companies. Lee's other point is also important:

the part about patents restricting “what feels like” freedom. There’s no “feels like” about it. Patents are a restriction on the treasured personal freedom of programmers, which is why so many of us are upset about them.

I think that's true, but again, I'd take it even further. I'm not sure I agree with Lundberg's assertion that this is somehow unique to software developers. I think it's absolutely true that we see more software developers than other patent-intensive fields, and thus we see more such activity, but any use of patents (or copyrights for that matter) are restrictions on the freedom of others by definition. Patents and copyrights are rights to exclude. That's their fundamental property. They are a government granted tool with which the holder can restrict the freedoms of others. There is a calculus involved, over whether or not that restriction on freedom is worth it in the long run. Does it incentivize more inventiveness? Does the benefit outweigh the restriction? That's what we're supposed to be determining.

The problem isn't just that indie developers feel super independent and blindsided by patent disputes, but, rather that they don't see the patents helping in any way, and thus the restriction on freedom is way too costly. A big part of the problem, of course, is that thanks (in large part) to regulatory capture, those who benefit most from patents (and copyrights) have done their best to tilt the law over time such that those key questions are never asked. They've created a world in which we are told to first assume that of course such restrictions create more incentives for invention and that of course the benefits outweigh the restrictions. People are yelled at for even suggesting otherwise, and it's rare to find a serious discussion on those topics. Instead, maybe questions are allowed at the margins about a specific part of the law that is seen as going too far. But the larger questions are never asked.

But for the people who live these things day in and day out, they know intuitively that the restrictions on their own freedoms are much much more problematic than any benefits given from patent law. And that is why they're upset. It's not just that the development and the infringement concerns are linked, but that the overall restrictions on freedom are just not seen to be worth it.

Let us imagine the old inventor in the XVIII/XIX centuries. That nerdy looking guy with weird beards and mustaches and apples raining down on his enlightened head.

So he decided he'd do some random research. What would he need to worry about? Resources: do I have the material and/or financial resources to proceed with this research? If it was something abstract like mathematics it was even better, only some papyrus (!!) and ink were required. Actually with some clever substitutions none of those were actually required.

What would this Euclid Newton Descartes need today? Resources, pretty much the same. Lawyers: to check if he isn't infringing any patents. More lawyers: to check if he isn't infringing in copyrighted round corners (intentional mix). Luck: so no big company feels threatened by his/her invention and end up "making up" some lawsuit to ruin this inventor financially (lawyers again if u think about it). And I'm not even mentioning collaborative invention.

Uh no duh, genius

Of course they're a limitation on freedom. ALL LAWS are a limitation on freedom. That pesky restriction on murder is [CUE DRAMATIC COURTROOM MUSIC] a limitation on your freedom to whip out a gun and just shoot someone. Heck, it's not just a limitation, it's a violation of your second amendment rights too.

ALL PROPERTY is a limitation on freedom. Letting you claim that you own that car severely limits my ability to just jump in and drive. Not only that, but granting you ownership of a fancy car really hurts the feelings of the poor people who can't afford one. Not only is it limiting their freedom to move about the country but it's hurting their self-esteem too.

Sheesh. If you don't like the patent system or the idea of property in general, why don't you move to Somalia where the government is generally too weak to enforce any property laws. I'm sure that there's a huge, burgeoning tech community inventing amazing drugs and Internet thingees without the cruel hand of the legal system crushing their innovation. And each night, there are incredibly cool parties with music from mind-blowing bands that aren't being held back from doing amazing things with remixes by the antiquated copyright law. I hear the place is amazing. Go check it out because there's a TON of AWESOME FREEDOM just waiting for you there.

Re: Uh no duh, genius

Wrong analogy, My owning a car does not stop you owning a car if you can afford. A patent could however stop you from building you own car from readily available parts, by claiming a patent on a configuration of those parts.

Re: Re: Re: Uh no duh, genius

I believe you misunderstood. The AC above stated a patent prevents you from building the same car. You say that's incorrect because you are still allowed to build a different car, but that's not the same thing.

Re: Re: Re: Uh no duh, genius

A patent may prevent me building a better care if it covers a critical idea. In rthe real worl Watts patent on the condenser held back steam engine development for decades, As soon as it expired people built compound engines, which they could not do before because the relied on the condenser. The idea was patented to spite Watt, as that prevented him from building compound engines.

The painfully obvious

> Patents are the same. Just because I "own" a method for creating some gizmo doesn't stop you from building a different gizmo or even building a better one.

That's EXACTLY what it means.

You can slap together something that's trivial to implement and claim ownership of that in a way that prevents ME from doing likewise.

It doesn't matter that I've never seen your "invention". It doesn't matter if your "documentation" is effectively worthless. It doesn't matter if it's trivial nonsense.

The problems inherent in patents seem a lot worse in computing because the field is so much more democratic. You don't need a lot of resources to create or contribute. All you really need is a cheap desktop PC.

Any amateur can run afoul of software patents. You don't even have to be a Robber Baron wannabe.

Re: Re: Uh no duh, genius

Sorry, you're not getting it. Canada also has patent laws and copyright laws. So does Japan. Your freedom is just as curtailed in Canada and Japan, perhaps even more so.

Who knows why the company isn't selling directly in America, but I bet it is because imports suffice and there's not enough demand for the fringe items to bother setting up official US distribution.

And if they're not doing it, that's their choice. Just because you're not distributing the photos you created, doesn't mean I should just be able to blame copyright laws and simply take them. If you created it, then it's YOUR choice whether you distribute them. The same goes for these guys.

Why do you assume that they are required to make you happy?

You're free to buy legit copies from overseas. You're free to import them. You just have to work a bit harder. BFD.

Re: Re: Re: Uh no duh, genius

"Who knows why the company isn't selling directly in America, but I bet it is because imports suffice and there's not enough demand for the fringe items to bother setting up official US distribution."

So, people running to Canada to get their drug prescriptions, the same ones they can get in the U.S., but at a much higher cost (in the U.S.) is fringe items, got it.

"And if they're not doing it, that's their choice. Just because you're not distributing the photos you created, doesn't mean I should just be able to blame copyright laws and simply take them. If you created it, then it's YOUR choice whether you distribute them. The same goes for these guys."

Did I SAY that they should be taken?

No, YOU put those words into what I said, bob.

HOWEVER!

Copyright *IS* preventing Super Robot Wars from being brought over to the West outside of people who import.

If you don't think so, try a quick, hmm... Well, since you don't believe in Google, I guess it's impossible for you to find out why.

Re: Re: Re: Uh no duh, genius

Who knows why the company isn't selling directly in America, but I bet it is because imports suffice and there's not enough demand for the fringe items to bother setting up official US distribution.

I know bob, I do know how all works, when some product doesn't show a prospect to the levels of ROI expected all companies run away they also don't want anybody trying because you know somebody may succeed and rip all the benefits, this is why exclusion tools are so important to them.

Companies also evolve, they start small and any profits is good profits then they grow a little and not all profits are good profits, they want more, more and more, up until they become to big to fail and nothing short of gazillions dollars could possible entice them to do anything, while other smaller guys would be happy to do it if they could, but they can't because big companies don't want the small guys succeeding even a little it erodes their profits margins.

Funny how things turn out, in the 80's big companies where all the rage, big companies killed mom & pop's business all over America because they were better at delivering things, today mom & pop's are back with a vengeance but they are excluded from the market because their high ROI is not even in the ballpark expected by some douche-entitled people.

Guess what not all laws apply to all types of property. If you want to talk about intellectual property then stop comparing it to personal property they aren't equal, not in life, and certainly not under the law!

Re: Uh no duh, genius

All laws are limitation on freedom, really? So then laws against murder, home invasion, ans stealing are a limitations on freedom, ratter than protection of property rights and the right to life, respectively?! Could you please go into a little more detail about this?

Re: Re: Uh no duh, genius

In fairness, yes, they are. Laws against murder curtail my right to use my own body in the way I see fit. This is OK because the same laws protect an opposing right that we as a society deem more important.

All laws are like this. But saying that doesn't mean it's a bad thing.

Re: Re: Re: Re: Re: Uh no duh, genius

Having read many of your comments, I believe this is more or less what you originally meant. I only posted to try to add clarity, not to dispute. As Ninja stated, confusion abounds amongst the trolls. I'm assuming that once enough laws have been purchased, they lose track of original intent and purpose of laws.

And thanks for not attacking me on my use of "you" in my previous post. It is just the way I talk and explain things. I don't normally post with an initial intent of being personal.

Re: Uh no duh, genius

Those damn Los Angelinos! Abusing our patents, removing anything valuable from our research and not compensating us! We here in the eastern seaside, have the right while those insane terrorists rule in the gold digger world. If they had ever had any respect for privacy, the world would have developed so much more!

Re: Uh no duh, genius

"Sheesh. If you don't like the patent system or the idea of property in general, why don't you move to Somalia where the government is generally too weak to enforce any property laws."

If you don't like Mike exercising his freedom of speech to advocate for the democratic change of laws in a country where such changes are (theoretically) possible, why don't you exercise your own freedom of speech to absurdly suggest that he should move in order to make you happy, though ostensibly because you perceive that his distaste for a bad system of laws relating to patents would be enough for him to want to flee the country.

Re: Uh no duh, genius

You must be someone related to the problem. That is the only reason I can think why someone would defend the patent system like it is perfect. Invent something or know someone who did and the problems become painfully clear. In essence only big companies can afford to invent new stuff because patents make the initial costs too high.

if only there was a way to know how many inventions DIDN'T happen or were stalled completely because of patents that were already in use or by the threats from big corporations that what was going on was against an already patented idea/item. that development didn't then continue because of the inventor being financially unable to defend themself in court. not only could this lack of progress had a massive, detrimental impact on the people, it could also have had a massive, detrimental impact on the very corporations that stopped it!

In software, patents give all the advantages to the big corporations, who can aim lawyers at almost any smaller project that they want to. They can certainly discourage the use of platforms like Linux by claiming patent infringement, or copyright infringement, but never acting on the claims.
The huge number of software patents has a chilling effect on software development, as no small company can carry out the patents searches to determione the risks if being bullied by a big corporation.
What happens to software compamnies if Microsoft for instance starts to really lose market share, and turns to its patent portfolio to extract license fees. Unless thay identify specific patents, no small company or organisation can determine which ones might be relevant.

Time and Resources

To expand on Ninja's comment, its time and resources that are required to "invent" something. The time to pursue the new invention and the resources to "make" it. The price of a computer is small in life's absolute terms. Plenty of free programming languages are available. Free web servers, databases, and all the other pieces are generally available free. Now the time and some effort start getting involved to put it all together and then build the "million dollar idea" on top of the existing stuff. Where software patents seem to run into a problem is with the separation of the idea from the implementation. Take for example, the infamous Amazon "One-Click" patent. They didn't invent clicking, they didn't invent a sales check-out, but they patented the "idea" of clicking once to check out and pay for a purchase. So, due to this patent, no one else anywhere on the planet can allow a computer system to let a person make a purchase of a product with one click of the mouse? I could easily see if they obtained a patent on all of the combination of the various parts that went into making it a reality, the combination of a database (which they wrote of course because they couldn't have a patent on comeone else's database), Web Server (ditto, no patent here), http, tcp, and so on, can't be patented either. But, the code that glued it all together to make a "fine" customer experience maybe could be patented. BUT, in that case, the idea of a "One-Click" check-out experience should still be able to be developed using a different set of "glue" code that hooked everything together to make the experience work. So much in the software patent world seems to be trying to patent the idea and not the implementation. I am sure that Quicken would love to have a patent on home and small business accouting software because it would lock out all of the competition. But, despite the fact that Microsoft gave up and Quicken bought out all of the competition, many new competitors have cropped up. After 30 years in the computer business, I have a very difficult time making sense out of what software patents seem to claim. Software patents seem to be well written to obfuscate what is being claimed so that it can be broadened as desire. It includes a requirement that "system and method" be used as many times as possible as well. What seems to be missing is the courts taking a close look at the various "systems and methods" that are claimed are actually infringed, or just the idea that was supposed to be implmented.

Re: Time and Resources

I have a very difficult time making sense out of what software patents seem to claim.

As another software person i agree with this, most are more opaque that APL one liners (written using the language's hieroglyphics). However this is deliberate tactic so that a patent can be squeezed through the patent office, and then its coverage broadened in the courts.

Re: Time and Resources

Exactly. But today ideas are what people want to patent: The development for the first prototype in almost anything but software is gonna be a very rough idea about what to do. It takes time and money to go from idea to invention and since you are gonna get kicked out from most moneymens offices without some way to protect your invention, it is gonna be hard to get funding without a patent.

As you develop the prototype, you will likely see a large change from your first patent to your final product. Therefore you either have to have been very unspecific in first patenting or waste money on a new patent on the final product or amend or change the existing patent. In USA it is more or less a requirement that a patent attorney handles these and that is expensive!

Very nearly every software patent I've encountered, and I suspect the vast majority of them in existence, fails the most basic test of patentability: they are obvious to a skilled practitioner of the art.

As far as I'm concerned, that's the #1 reason to strike down software patents. It's because the USPTO doesn't play by the rules they themselves have stated. The only way I can square their actions in granting patents with their stated rules is if the threshold for obviousness is set at the level of a slighly below-average eight-year-old.

BTW, I say this as a software developer, and as a patentee. My patent is fundamentally a software patent, and I was shocked when it got granted (my employer put it through), because I think, and any skilled programmer I've asked agrees, that it's just bleeding obvious. Anyone worth their salt, faced with that exact problem, would have come up with that exact solution in short order. That should not be patent worthy.

The USPTO needs a serious kick in the shorts to drive its notion of what's obvious out of its rear end and back into its head. And the political backing to stand up to IP law firms that push this drivel and say definitively, "No. Now go away until you *really* invent something."

Most software patents don't pass the sniff test

The fact that it is so easy to write code that infringes on one patent or another should be enough to show that most software patents are obvious. They are also more of a patent on an idea than an implementation. Even worse are the patents that throw "digital" or "internet" in their title to make it sound like some new thing.

It's like this...

A computer is an electronic brain. An algorithm is a thought, regardless of it running on silicon or neurons. By patenting software, you are patenting thoughts.

Process patents should be done away with as well. You should not be able to tell other people that they can't follow these steps to make something. That's like patenting a recipe, which has already been deemed unpatentable.

Re: It's like this...

I have to disagree on the process part. If the process is sufficiently limited in scope it is reasonable to protect how you make a geneticly modified crop from a virus carrying a specific gene. However, if it is unspecified what virus and what gene you need for this process...

Process patents are often too broad since they usually dump out of the end of a lawyer before the end-goal of the thing you want patented is reached. That it is granted without demands for specifications will be a travesty in many cases. Patenting software is like patenting processes. You just end up with far too few steps in the process!

Re: Re: It's like this...

"it is extremely rare that a small developer would ever be sued for infringement by any entity other than a direct competitor. In this instance, the developer would be able to quite easily see it coming"

Has this guy every actually set foot in anyplace that actually makes anything? This is completely wrong. You don't get sued at all in the begining while you are small, you get sued if you ever manage to amount to anything and people come around with their hands out. They are certainly not your direct competitors who normally be sueing you at that point either, but rather patent trolls.

Either that, or they are the old guard trying to exploit some loophole they found to prevent you from crushing them. They might be your direct competitors when you are sued, but never when you are developing.

Re:

That is changing, as patent trolls get comfortable they start expanding their area of influence.

Hotels, coffee shops, bread & breakfast, just about any commercial establishment is being hit by threat of lawsuits for using WiFi and this is happening right now, the patent troll was even musing when they could start threatening users.

That is just one, others sure will fallow since IP law is granting morons exclusive rights, they practically can do anything they like and they are getting away with it.

The reason software developers don't tow the patent line as much as others is simply because we know the secret:
Invention, innovation, creation, progress.... It all works faster and better when patents aren't in the picture/way. It's more than just a theory for us. It's tested and proven and we all know it.

He missed my objection

Steve Lundberg failed to address my problem with software patents.

It's pretty simple: software patents are generally of such poor quality that it is literally impossible to produce any software of any substance without infringing on one or more of them. Further, it's impossible to know what you're infringing on until you get sued.

I can think of nothing in the software industry that does more harm to innovation than software patents.

The fundamental difference

Speaking as a programmer, I think that software patents are fundamentally different than patents in other technologies. This is because all software, on a fundamental level, is an algorithm.

In a very real (and mathematically provable) way, a software patent is equivalent to a patent on a math. A program that's written in one programming language can be written in any other programming language. This isn't news; Church and Turing proved it in the 1930s. But this means that when somebody takes out a patent on software, they're establishing a monopoly on a specific section of mathematics.

For instance, Lundburg says that software patents aren't fundamentally different than robotics patents; this is simply wrong. Suppose a roboticist invents a new mechanism that can turn a robot arm with greater efficiency and control. If she takes out a patent on this mechanism, everybody else can either license the patent, or invent a better mechanism. If that patent was handled in the same way as a software patent, it would effectively establish a monopoly on any mechanism that turned a robot arm -- not just the specific mechanism the roboticist invented.

Another good metaphor involves gene patents. A gene can code for a specific amino acid; a patentable gene sequence can code for a series of amino acids that assemble into a specific protein. Someone who patents a gene sequence has found a way to code for a protein, but there are many different gene sequences that can code for a specific protein. In this scope, a software patent would be like a patent on an amino acid; the patent would apply to any protein that used that amino acid, and to any gene sequence that coded for those proteins.

Speaking as a programmer, I'm not convinced that software should be patentable at all; it's too different from other forms of invention. I think it would make much more sense to protect software using copyright, which has the whole idea/expression dichotomy. It makes sense to protect the specific expression of a program, but it makes no sense at all to establish a monopoly on the underlying math.

restriction on freedom is just the start

I'm a software developer. I've been a software developer for decades. I like my job a lot.

But to me, there are very few non-obvious ideas in software.

Oh sure, there are a few brilliant things out there. Public key cryptography, Huffman encoding, things like that. But CEOs, attorneys, and managers don't know the difference between obvious and non-obvious in software, so they try to patent it all.

And while I agree that software patents' restriction on freedom is annoying to me, I'm even more annoyed by the fact that software patents' restriction on freedom is usually for fucking stupid reasons that just don't hold up to reason.

I would rather not have patents and strict copyright law. I want to get into computer programming but I am so restricted in what I can make. I don't want to break the law.I would like to be able to use software without being restricted by copyright law and patent law.If someone makes a work or creates a work before other people they can control the use of it. My generation is more restricted, I think than the previous,more things have been created. So much stuff has already been taken. If I create a computer game someday I would want to share it with the world ,not be stingy and sue people for building on it. If I ever do become a programmer and create a computer game (which I would like to do later on this year or next) I would allow people to create derivative works of it and make multiple copies. I believe that I could still make money and do this.

more dissembling by Masnick

'Yes, Patents Are A Restriction On Freedom'

Of course -freedom to steal!

The word on the street is you, Lee, and all the other spin doctors you like to quote are nothing more than paid puppets of the world's largest invention thieves. Their aim is to destroy the patent system so they can rob and destroy their would be competitors. Neither they or you have any scruples.

In Federalist No. 43, James Madison wrote regarding constitutional rights of inventors, "The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals."

It's about property rights. Now more than ever small entities need strong property rights including the ability to exclude others from using our inventions without permission. Without them we cannot get funded and commercialize. Without strong property rights China and other low wage foreign nations will keep steam rolling us. Considering we create the lions share of new jobs here at home, America cannot afford to undermine us.

Re: more dissembling by Masnick

My opinion

Patents have not been always around. If there was no such thing as patent law or copyright then me basing my work off another is not wrong. I am not physically taking anything. If I wrote a book and you had a dream about it could I call you a theft? Did you steal my imagination? No. What if someone patented the wheel or the plough? How far would inventions have gone long time ago if there was patent law when there was none? If people don't want others to use their ideas why do they use other people's idea? Why do people write in English if they didn't invent it? People shouldn't be so selfish and think just because they have an idea they are entitled to make money off of every use of it. I I build a chair and sell it to you should I be able to sue you if you paint it? Should I charge you everytime a person other than you uses it? How can a nonphysical idea be stolen? How is using an idea of another theft? I don't like patents. What if someone was able to create a life saving medicine ,but in order to do so they had they had to build off of others idea but couldn't invent it because a greedy person used patent law to prevent it and people died.If you a scientist you had to learn science. You read other people's ideas and if you invented something you used your knowledge which you got from other people.

Legal Trolls

Its the personal opinion of this commenter that lawyers like Steve Lundberg who file patents for themselves as inventors on subjects like improved search for patents are just about the lowest form of scum on the planet.